More than a century ago, lawmakers grew so fed up with federal agencies spending money they didn’t have that Congress passed a law to rein them in.
Now, legal experts say President Donald Trump may be violating that 149-year-old statute by keeping agencies running despite the budget impasse that has cut off funding for roughly a quarter of the federal government.
The administration’s decision to continue some government functions could even bolster court challenges of policy decisions made by supposedly shuttered agencies.
Environmentalists, for example, are researching whether the shutdown could invalidate some drilling permits issued during the lapse in funding. And a government employees union has challenged demands that its members continue working without pay.
“Some agencies are playing fast and loose with their ability to tap either past funds or incoming revenues to keep open,” said Charles Tiefer, a professor at the University of Baltimore law school and a former deputy general counsel to the House of Representatives.
The issue is becoming less theoretical by the day, as the Trump administration takes pains to blunt the effects of the standoff by tapping user-fee revenue, leftover funding and other resources to keep some politically popular agency functions going.
On Tuesday, the U.S. Department of Agriculture said it would keep issuing food stamp benefits through the end of February. And though the Treasury Department had previously decided that a shutdown would bar the Internal Revenue Service from issuing income tax refunds, the administration said Monday it would nevertheless direct the agency to send refunds this time around.
The blueprint for what’s allowed is the Antideficiency Act, enacted in the shadow of the Civil War after federal agencies flouted the Constitution’s prohibition on drawing money from the Treasury without “appropriations made by law.” The final straw came in 1870, when the U.S. Navy committed to spend more than double its available resources.
The obscure law, enacted under former President Ulysses Grant, is the reason hundreds of thousands of government workers have been forced to turn off mobile phones, ignore email and keep their government-issued laptops closed while Congress and the president battle over funding for a wall on the Mexican border.
There are exemptions for emergencies involving the safety of human life or the protection of property. But the law is clear: Those exceptions don’t extend to “ongoing, regular functions of government” where stopping them doesn’t pose an imminent threat.